UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 11, No. 2WINTER 1988
NOTE
Automatic Consumer Protection Act Recovery For Lack Of Informed Consent: Quimby v. Fine
Dr. Carroll Rusk, Jr.
I. Introduction
In Quimby v. Fine,(fn1) the Washington Court of Appeals, Division I, ruled for the first time "that [a] lack of informed consent claim(fn2) against a health care provider may be within the scope of the Consumer Protection Act,(fn3) if it relates to the entrepreneurial aspect of the medical practice."(fn4) The court noted that "whether [defendant's] conduct meets the other prongs [sic](fn5) of the Hangman(fn6) test is a question of fact to be resolved at the trial level."(fn7) But the court apparently failed to recognize the parallel structures of the informed consent statute(fn8) and the test articulated in Hangman Ridge Training Stables v. Safeco Title Ins. Co. for a "private dispute"(fn9) under the Consumer Protection Act.(fn10) This parallelism effectively forces the conclusion that a plaintiff who establishes the elements of his lack-of-informed-consent action has also satisfied the elements of private Consumer Protection Act action.
In addition, the requirement that the lack of informed consent "relate" to the "entrepreneurial aspects" of the medical practice is inherently problematic. First, the standard is difficult to interpret. Second, virtually every lack-of-informed-consent action will fall within the purview of the Consumer Protection Act automatically. By providing a test that does not differentiate claims, the court has given no guidance concerning the rightful application of the punitive aspects of the Consumer Protection Act. This guidance is necessary if the Consumer Protection Act is to achieve its dual purposes of protecting the public and fostering fair and honest competition.(fn11) As it stands, the test announced by the Quimby court will grant Consumer Protection Act damages for merely negligent failure to obtain informed consent. These damages should be available only when the health care provider profits because he failed to obtain informed consent.
This Note will demonstrate the need to refine the entrepreneurial aspects test as it applies to medical professionals and suggest a rationale for identifying those lack-of-informed-consent actions to which the Consumer Protection Act rightfully applies. Specifically, this Note seeks to: 1) demonstrate that satisfaction of the statutory elements of a lack-of-informed-consent claim(fn12) necessarily satisfies the five prongs of the Hangman private dispute test;(fn13) 2) show that the additional requirement that the lack of informed consent "relate to the entrepreneurial aspects of the medical practice" has not been definitively interpreted, and that it may be unintelligible in context;(fn14) 3) identify the practical difficulties of distinguishing entrepreneurial activity from professional activity within the framework of informed consent in health care,(fn15) and suggest a plausible interpretation of the "entrepreneurial aspects test" that may aid in identifying those types of lack-of-informed-consent actions to which the Consumer Protection Act should apply;(fn16) and 4) consider the policies justifying this suggested interpretation.(fn17)
II. Facts and Holding of Quimby v. Fine
Quimby was an appeal from a denial of defendant-physician Fine's motion for summary judgment in a wrongful birth action. Plaintiffs' allegations included medical negligence, lack of informed consent, and a consumer protection claim. Rose Quimby had consented to a particular sterilization procedure. Dr. Fine, however, performed an alternate procedure(fn18) without advising the patient of, or obtaining her consent for, the substitution.(fn19) The procedure, a tubal ligation, failed. As a result, Mrs. Quimby became pregnant and delivered an infant with multiple birth defects. The child died eleven months later.(fn20)
Dr. Fine moved for summary judgment contending, inter alia, that the Consumer Protection Act was inapplicable to plaintiffs' causes of action because it could not apply to either medical negligence or lack of informed consent.(fn21) In affirming the denial of summary judgment and remanding for trial,(fn22) the court re-examined the application of the Consumer Protection Act to the "learned profession" of law in Short v. Demopolis(fn23) and found "no basis to distinguish the legal practice from the medical practice"(fn24) in applying a consumer protection statute.
Noting that the elements of a private Consumer Protection Act claim had been enumerated in Hangman, the court acknowledged that the requirements of the Hangman test(fn25) must also be satisfied. The court concluded that the Consumer Protection Act was applicable to Mrs. Quimby's lack-of-informed-consent claim stating that "a lack-of-informed-con-sent claim can be based on dishonest and unfair practices used to promote the entrepreneurial aspects of a doctor's practice, such as when the doctor promotes an operation or service to increase profits and the volume of patients, then fails to adequately advise the patient of risks or alternative procedures."(fn26)
To review, the holding in Short impliedly brought health care professionals within the reach of the Consumer Protection Act. The Hangman court enumerated the elements of such a Consumer Protection Act claim, and the Quimby court extended Consumer Protection Act coverage to lack-of-informed-consent claims, provided that the lack-of-informed-consent claim relate to the entrepreneurial aspects of a medical practice.
III. Short v. Demopolis: The Inevitable Application of the Consumer Protection Act to Medical Professionals
The Washington Supreme Court first applied the Consumer Protection Act to a learned profession in Short v. Demopolis.(fn27) In Short, the defendant-client counter-claimed against plaintiff-attorney who was suing for collection of fees for legal services rendered. Remarking that the Consumer Protection Act contains no language expressly excluding attorneys from its purview, the court concluded that some conduct within the practice of law did fall within the Consumer Protection Act. The court held that the term "conduct of any trade or commerce" does not exclude all conduct of the profession of law,(fn28) since "[w]hatever else it may be . . . the exchange of such a service for money is 'commerce' in the most common usage of that word."(fn29) The court specifically left open the question of whether the Consumer Protection Act applies to every aspect of the practice of law as to the performance of legal services.(fn30)
By contrast, the claims amounting to allegations of negligence or malpractice were held as a matter of law to be exempt from the Consumer Protection Act.(fn31) These claims were "not chiefly concerned with the entrepreneurial aspects of the legal practice; rather, they concern[ed] the actual practice of law."(fn32) The only claims that were allowed to go forward were those that "primarily challenge the entrepreneurial aspects of legal practice-how the price of legal services is determined, billed and collected and the way a law firm obtains, retains, and dismisses clients."(fn33) The court recognized that failure to extend the Consumer Protection Act generally to the learned professions in Washington had been criticized as based on the "myth of the learned profession exemption to the Consumer Protection Act."(fn34) This criticism contributed to the application of the Consumer Protection Act to the learned profession of law in Short.(fn35)
Commentators have approved the extension of the Consumer Protection Act to the legal profession.(fn36) Some have argued, however, that Short should have extended the Consumer Protection Act's protection to virtually all aspects of the professional's practice, not merely those deemed "entrepreneurial."(fn37) Indeed, this blanket application was suggested to the Short court.(fn38) But while the majority opinion in Short left open the question of comprehensive application of the Consumer Protection Act to the legal profession,(fn39) a concurring opinion emphasized the sentiment that Short "necessarily decided that the [Consumer Protection Act] does not apply to every aspect of the practice of law in this state."(fn40)
But the supreme court, in construing the Consumer Protection Act,(fn41) followed the intent of the legislature that the courts be guided by final decisions of the federal courts.(fn42) The court then cited numerous federal cases in which the "learned professional" exception was of no avail to various health care professions.(fn43) This construction effectively demolished any bar to the application of the Consumer Protection Act to at least some aspects of the medical profession.(fn44)
Other states have applied their Consumer Protection Acts to the health care professions,(fn45) and at least one court has considered whether the negligent acts of a physician are within the scope of a Consumer Protection Act,(fn46) but none has applied its Consumer Protection Act to a lack-of-informed-consent claim.
Relying on the reasoning in Short, the Quimby court found "no basis to distinguish the legal practice from the medical practice."(fn47) And, like the supreme court in Short, the court of appeals in Quimby carefully excluded plaintiff's negligence claim from the purview of the...
